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Cumulative and Concurrent Sentences

Cumulative and Concurrent Sentences

The content on this page was last reviewed on 13 December 2022.

Related links:
Commencement of Federal Sentences
Sentencing Child Exploitation Offences
Multiple or Continuing Offences
One Transaction Rule
Totality Principle
Double Punishment

1. Overview

Under s 19 of the Crimes Act 1914 (Cth) the court may set a federal sentence that is, in effect, cumulative, partly cumulative, or concurrent upon another federal, state or territory sentence. Prior to the introduction of Part IB of the Crimes Act 1914 (Cth), federal sentences could not be partly cumulative upon other sentences: Explanatory Memorandum, Senate, Crimes Legislation Amendment Bill (No 2) 1989 (Cth), 12.

Section 19 imposes two primary requirements on sentencing courts:

  1. The court must, ‘by order, direct when each federal sentence commences’: Crimes Act 1914 (Cth) s 19(1), (2) and (3). (See below: 2.1 Setting a cumulative, partly cumulative, or concurrent sentence)
  2. In making this order the court is to ensure that no federal sentence commences later than the ‘end of the sentences the commencement of which has already been fixed’ or ‘the last to end of those sentences’: Crimes Act 1914 (Cth) s 19(1)(b), (2) and (3)(c).

Sections 19(1)–(3) of the Crimes Act 1914 (Cth) set out the situations in which the above requirements are enlivened. These are:

  • where a person is convicted of a federal offence, or federal offences, and at the time of that conviction is serving or subject to one or more federal, state or territory sentences (s 19(1));
  • where a person is convicted of 2 or more federal offences at the same sitting, and is sentenced to imprisonment for more than one of the offences (s 19(2)); and
  • where a person is convicted of a federal offence or offences, and a State or Territory offence or offences, at the same sitting, and is sentenced to imprisonment for more than one of the offences (s 19(3)).

Section 19 is headed ‘Cumulative, partly cumulative or concurrent sentences’1but the terms ‘cumulative’ and ‘concurrent’ do not appear in the section (nor are they defined in the Crimes Act 1914 (Cth)).

A court imposing a cumulative, partly cumulative, or concurrent sentence for a federal offence is required by the general language of the section to direct when the federal sentence commences, rather than order that the federal sentence be cumulative, partly cumulative, or concurrent.

The LexisNexis Concise Australian Legal Dictionary (5th ed, 2015) defines the terms as follows:

Cumulative sentence: A punishment or term of imprisonment which commences at the expiration of another punishment or term of imprisonment …

Concurrent sentence: A sentence that is served at the same time as another sentence.

2. Application of section 19

2.1 Setting a cumulative, partly cumulative, or concurrent sentence

A court is not empowered to make an order that a sentence ‘be served cumulatively’, rather it must operate under s 19 of the Crimes Act 1914 (Cth) and fix a commencement date so that this effect is achieved: R v O’Brien (1991) 57 A Crim R 80, 87.2

In applying s 19(3), the Court in DPP (Cth) v Swingler [2017] VSCA 305 described the practical requirement of the provision at [71]:

It appears that, when dealing with sentencing for multiple Commonwealth offences, while the Court may describe the overall intended effect of its orders by reference to terms such as concurrency or cumulation, as is the practice in State law, the Court is required to translate any such statement of intent into appropriate statements of commencement dates (emphasis added).

The Court further held at [72]:

In directing when each Commonwealth sentence is to commence, in accordance with s 19(3) of the Crimes Act (Cth), a court may adopt any one of the following techniques:

  • fixing a particular date (for example, ‘16 April 2019’);
  • describing a period (for example, ‘12 months after the commencement of the sentence on charge 1’, or ‘nine months before the expiry of the sentence on charge 2’); or
  • identifying a triggering event (for example, ‘at the completion of the sentence imposed on charge 1’).

To give effect to cumulation or concurrence under s 19, Maxwell P, Weinberg and Beach JJA in DPP (Cth) v K M D [2015] VSCA 255, [90] held that courts may take one of two possible approaches. What is termed by Gummow, Callinan and Heydon JJ in Johnson v The Queen [2004] HCA 15, [26] the ‘orthodox approach’, as propounded in Pearce v R [1998] HCA 57, [45] requires that the court ‘fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence’. Alternatively, the ‘moderate and cumulate’ approach involves courts setting lower-than-appropriate sentences for each charge and then cumulating them to reach an appropriate total sentence: DPP (Cth) v K M D [2015] VSCA 255, [90].

Citing Johnson v The Queen [2004] HCA 15, the Court in DPP (Cth) v K M D [2015] VSCA 255 held at [96] that the orthodox approach ‘should be departed from only when some special feature of the case (for example, multiple victims of an offence of violence) requires such a departure’. This approach has been described as ‘fundamental’ in the state sentencing case of R v AEM Snr [2002] NSWCCA 58, [65] and ‘no matter of technicality’ by Howie J in R v Carr [2002] NSWCCA 434, [35].

Regarding the ‘moderate and cumulate’ approach, the Court in Soerensen v The Queen [2020] WASCA 114 held at [82]:

If a sentencing judge decides, in the application of the totality principle, to achieve an appropriate total effective sentence by lowering one or more of the individual sentences below what would otherwise be appropriate, the judge should expressly state that fact in his or her sentencing remarks.

2.2 Sentencing for state and federal offences

Sections 19(1)–(3) cover circumstances where state and federal sentences are to be imposed at the same time.

The Court in DPP (Cth) v Swingler [2017] VSCA 305 stated at [77] that state and federal sentences are to be understood differently:

As is generally understood, State sentences ordinarily run from the date on which those sentences are imposed. They can, however, be made to operate in the future, by means of orders as to cumulation as between those State sentences. Commonwealth sentences operate quite differently. They can be ordered to commence at any time in the future, provided there is no gap between the expiration of one sentence, and the commencement of another. One way or another, a commencement date must be stipulated. [Emphasis added]

The Court continued at [78] that there are three ways to deal with a sentence involving Commonwealth and state offences; the simplest approach, adopted by the court, was as follows:

The judge can group all the State offences together, and first sentence upon them individually. This has the advantage of enabling the sentences for the Commonwealth offences to be directed to commence at, for example, the expiration of the relevant State non-parole period. That avoids any gap in the custodial term, and seemingly simplifies the process, by ensuring that relevant rules as to cumulation and concurrency are applied appropriately, and within the proper sphere of each sentencing regime… (emphasis added).

On this approach, the ‘base sentence’ may not be the most severe sentence if the Commonwealth sentence(s) are longer than the state sentence(s). However, this approach may be preferable so as to avoid any uncertainty arising from different state laws providing for the commencement of sentences: see DPP (Cth) v Swingler [2017] VSCA 305, at [79]–[81].

Additional complexity arises where an offender serving a sentence for a Commonwealth offence is subsequently sentenced for a state or territory offence. Section 19 does not provide guidance in such cases, and the law of the state or territory must be applied.

2.3 ‘No gap’

Sections 19(1)(a), (2), and (3)(c) of the Crimes Act 1914 (Cth) require courts, when fixing commencement dates for federal sentences, to ensure that no federal sentence commences later than the end of any sentence which has already been fixed.

The phrase ‘end of the sentences the commencement of which has already been fixed’ includes a reference to another sentence which is imposed at the same time as the federal sentence: Crimes Act 1914 (Cth) s 19(4).

The purpose of these requirements is to ‘avoid the creation of a “gap” in incarceration, which would be undesirable’: Fasciale v The Queen [2010] VSCA 337, [36] (Weinberg JA).

Similarly, there should be no gap between the end of a state non-parole period and the commencement of the federal sentence: Crimes Act 1914 (Cth) ss 19(1)(b), (3)(d). Where a non-parole periodapplies for a state or territory offence, sub-ss (1)(b) and (3)(d) require that ‘the first federal sentence to commence after the end of that non-parole period commences immediately after the end of the period’.

‘Non-parole period’ is defined in s 16(1) of the Crimes Act 1914 (Cth):

‘non-parole period’, in relation to a sentence or sentences of imprisonment, means that part of the period of imprisonment for that sentence or those sentences during which the person is not to be released on parole, whether that part of the period is fixed or recommended by a court or fixed by operation of law.

Davies JA in R v Dobie [2004] QCA 140 notes at [20] that ss 19(1)(b) and (3)(d) are expressed in the present tense, and are therefore only enlivened when ‘a non-parole period applies’ at the time of sentencing. As such, the ‘no gap’ requirement does not apply to non-parole periods which have expired by the time the federal commencement date is fixed. Accordingly, there is no requirement to backdate the commencement of sentences to expired non-parole periods. This interpretation was cited with approval by Wilson J in MacCormack v The Queen [2005] QSC 49, [13] and adopted in Mercanti v The Queen [2011] WASCA 120 by Hall J (McLure P and Boss JA agreeing).

It is unclear if a court can direct a sentence to commence on an uncertain date. In DPP (Cth) v Swingler [2017] VSCA 305, Ferguson CJ, Maxwell P and Weinberg JA held at [72] that a ‘triggering event’ could be identified as the commencement date for a sentence under s 19(3).

However, in R v Knight [2013] QCA 277 the sentencing judge had directed the federal sentences to commence ‘upon the expiration of his incarceration for the current term of imprisonment being served’. In Knight, Atkinson J (Muir and Fraser JJA agreeing) stated at [23]:

It is open to doubt that a sentencing judge may direct a sentence to commence on a date that is uncertain or that is dependent upon a decision of a State administrative body.

However, the court did not make a determinative finding on the issue, as there was no provision under the relevant state parole legislation for a prisoner to be granted parole in order to commence a new sentence of imprisonment.

2.4 Directing commencement of a federal non-parole period

R v TW (No 2) [2014] ACTCA 37 involved the re-opening of a re-sentence by the ACT Court of Appeal for an offender sentenced for territory and federal offending. The initial appeal resulted in the federal head sentence commencing upon the expiration of the territory head sentence, and the federal non-parole period commencing upon the expiration of the territory non-parole period.3

The effect of this was that the federal non-parole period commenced and expired prior to the commencement of the federal head sentence to which it related. When the case was re-opened, Refshauge, Penfold and Gilmour JJ discussed non-parole periods in the context of s 19(3), holding at [10]–[11]:

It is, accordingly, clear that to set a non-parole for a period during which the offender is not serving the term of imprisonment to which the non-parole period relates results in a sentence that is not in accordance with the law.

In this case, were the Court simply to direct that the non-parole period commence at the start of the head sentence for the federal offences, this would then cause the sentence to breach the provisions of s 19(3)(d) of the Commonwealth Crimes Act, thus further creating a sentence that is not in accordance with the law [Emphasis added].

3. Presumptions of cumulation and concurrency

There is no general statutory presumption of cumulation or concurrency in the Crimes Act 1914 (Cth). Instead, Spigelman J in R v MMK [2006] NSWCCA 272, [13] held that the appropriateness of ordering cumulative, partly cumulative, or concurrent sentences is a matter for the discretion of the sentencing judge, bound by the common law principles which apply to sentencing generally.

The way that the offending conduct is characterised will be a central question in determining questions of cumulation and concurrency. Wells J in Attorney-General v Tichy (1982) 30 SASR 8 held at 93 that:

Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged in one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient.

This view was approved by Gleeson CJ in Johnson v The Queen [2004] HCA 15, [5].

In keeping with the general approaches to sentencing, courts must have regard to the principles of totality, double punishment, and the one transaction rule.

There is a common law presumption that sentences will be served concurrently unless otherwise ordered: R v Longford [1970] 3 NSWR 276, 278. This presumption has been reflected in some state and territory sentencing legislation including the Crimes (Sentencing Act) 2005 (ACT) s 71, the Sentencing Act 1991 (Vic) s 16(1), and the Sentencing Act 1995 (WA) s 88(2). However, it is not reflected in the Crimes Act 1914 (Cth).

Further, there is no duty on the Crown to positively seek a cumulative sentence where it considers it appropriate. The sentencing judge must turn their mind to whether the sentences should be concurrent or cumulative and it is for the judge to determine ‘what should be the appropriate overall sentence or how the sentences should be structured to achieve that result’: R v Institoris [2002] NSWCCA 8, [98] (Howie J and Mason P agreeing).

3.1 Presumption of cumulation for Commonwealth child exploitation offences

Section 19(5) creates a presumption in favour of cumulation for a ‘Commonwealth child sex offence’ or a ‘State or Territory registrable child sex offence’: see R v Hartley-Kennett [2021] ACTSC 88, [31]; R v Large [2021] NSWDC 429, [55].

Sections 19(5)–(7) are in the following terms:

(5)  An order must not have the effect that a term of imprisonment imposed on a person for a Commonwealth child sex offence be served partly cumulatively, or concurrently, with an uncompleted term of imprisonment that is, or has been, imposed on the person for: 

  • (a)  another Commonwealth child sex offence; or 
  • (b)  a State or Territory registrable child sex offence. 

(6)  Subsection (5) does not apply if the court is satisfied that imposing the sentence in a different manner would still result in sentences that are of a severity appropriate in all the circumstances. 

(7)  If the court imposes a term of imprisonment other than in accordance with subsection (5), the court must: 

  • (a)  state its reasons for imposing the sentence in that manner; and 
  • (b)  cause the reasons to be entered in the records of the court.

In R v Hartley-Kennett [2021] ACTSC 88, Burns J noted at [31]:

[T]his presumption can be displaced if I am satisfied that a different sentence structure will result in a severity of sentence appropriate in the circumstances. In my opinion, the fact that these offences occurred as part of the one series of conduct by you is a cogent reason to displace the presumption created by the section. To impose entirely consecutive sentences would result in an aggregate sentence greater than that required to reflect your overall criminality.

3.1.1 Definitions

‘Commonwealth child sex offence’ is defined in s 3(1) as follows:

Commonwealth child sex offence means:

(a)  an offence against any of the following provisions of the Criminal Code :

  • (i)  Division 272 (Child sex offences outside Australia);
  • (ii)  Division 273 (Offences involving child abuse material outside Australia);
  • (iia)  Division 273A (Possession of child-like sex dolls etc.);
  • (iii)  Subdivisions B and C of Division 471 (which create offences relating to use of postal or similar services in connection with child abuse material and sexual activity involving children);
  • (iv)  Subdivisions D and F of Division 474 (which create offences relating to use of telecommunications in connection with child abuse material, sexual activity involving children and harm to children); or

(b)  an offence against section 11.1, 11.4 or 11.5 of the Criminal Code that relates to an offence described in paragraph (a) of this definition; or

(c)  an offence against a provision described in paragraph (a) of this definition that is taken to have been committed because of section 11.2, 11.2A or 11.3 of the Criminal Code .

‘State or Territory registrable child sex offence’ is defined in s 3(1) as follows:

State or Territory registrable child sex offence’ means an offence:

(a)  that a person becomes, or may at any time have become, a person whose name is entered on a child protection offender register (however described) of a State or Territory for committing; and

(b)  in respect of which:

  • (i)  a child was a victim or an intended victim; or
  • (ii)  the offending involved child abuse material.

3.1.2 Purpose of ss 19(5)–(7)

Sections 19(5)–(7) were inserted by the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Act 2020 (Cth). The Explanatory Memorandum to the Bill which introduced this provision explained the purpose of the amendments as follows at [286]–[288]:

The objective of the presumption is to act as a yardstick against which to examine a proposed sentence of an offender for multiple child sex offences to ensure that the effective sentence represents a tougher response to the objective seriousness of the sexual abuse of children. It benefits circumstances such as where offences are committed against separate victims over an extended period of time. The proposed subsection 19(6) provides an exception to this rule where the court is satisfied that imposing a sentence in a different manner (such as partly cumulatively or concurrently) would be of a severity appropriate in all the circumstances.

The proposed subsection 19(6) recognises there will be circumstances where the application of this presumption would result in an unacceptable outcome. Accordingly, discretion is retained for the court to consider the outcome for all the offences in totality and, if appropriately satisfied, order the sentence in a different manner provided that the sentence overall is still of a severity appropriate in all the circumstances.

However, the proposed subsection 19(7) requires that where a court under subsection 19(6) is satisfied that the sentences do not need to be served cumulatively, the court must explain the reasons for being so satisfied and ensure that the reasons are entered in the records of the court. Given the significant difference that decisions of the court on this aspect can make to the total length of the sentence imposed on an offender – and the justice outcome for the victim – it is important that the court is required to explain its reasons.

See further: Sentencing Child Exploitation Offences.

4. Effects of incorrect application of section 19

4.1 Section 19 error may result in need to resentence

Where the sentencing court has incorrectly applied s 19 of the Crimes Act 1914 (Cth) by failing to direct a commencement date for each sentence or by breaching the ‘no gap’ requirements, the sentence(s) may be set aside and the offender re-sentenced: R v Daswani [2005] 167, [10].

In R v Daswani [2005] 167, the Queensland Court of Appeal found that the sentencing judge had erred in ordering that the sentence for a federal offence be served cumulatively on State offences without specifying a commencement date to give effect to that determination. McMurdo P (Jerrard JA and Fryberg J agreeing) found at [10] that such an order ‘can have no effect’, but that it was open to the Court to ‘re-sentence and impose a lawfully structured sentence having the same practical effect as that originally imposed’.

Likewise, in Edwin v The Queen [2014] ACTCA 47, the sentencing judge was found to have, among other errors, made orders in breach of s 19(3)(d) by directing a sentence to commence more than 12 months after the conclusion of the non-parole period for a territory offence. The Court determined at [86] that ‘those sentences must be recast in any event’.

Correction of s 19 errors will not always require an appellate court to re-sentence an offender de novo. In R v TW (No 2) [2014] ACTCA 37, [15]–[18] the ACT Court of Appeal re-opened a matter on the Crown’s initiative to correct a s 19 error. In doing so, the court exercised its jurisdiction to correct an error under s 61 of the Crimes (Sentencing) Act 2005 (ACT), which applied to the proceeding by virtue of s 68 of the Judiciary Act 1903 (Cth).

Provisions in similar terms to s 61 of the Crimes (Sentencing) Act 2005 (ACT) are found in the sentencing legislation of each state and territory: Crimes (Sentencing Procedure) Act 1999 (NSW) s 61; Sentencing Act 1995 (NT) s 112; Penalties and Sentences Act 1992 (Qld) s 188; Sentencing Act 2017 (SA) s 20; Sentencing Act 1997 (Tas) s 94; Sentencing Act 1991 (Vic) s 104B; Sentencing Act 1995 (WA) s 37.

4.2 Section 19 and section 19AH

Failure to comply fully with the Crimes Act 1914 (Cth) in respect of fixing non-parole periods or making recognizance release orders does not affect the validity of the sentence: Crimes Act 1914 (Cth) s 19AH(1).

The Court in R v TW (No 2) [2014] ACTCA 37 considered whether s 19AH could rectify the sentencing judge’s error under s 19(3). Refshauge, Penfold and Gilmour JJ held at [14] that s 19AH was not sufficient to resolve this error:

While the relationship between the head sentence and the non-parole period of the sentence for the federal offences imposed on TW bespeaks of error, a re-fixing of the non-parole period to start at the same time as the sentence of imprisonment will not resolve the problem for it will not address the breach of s 19(3)(d) of the Commonwealth Crimes Act that would then result. Thus, s 19AH cannot provide a solution to the error.

Similarly in Street v Tasmania Police [2016] TASSC 52, the Court considered that an order made contrary to s 19(1) could not be sufficiently rectified at [9]:

I am satisfied that these errors, either individually or a combination, have the effect that the sentencing discretion in respect of all of the actual sentences of imprisonment imposed by the magistrate, has miscarried. The sentences so affected include the activated suspended sentence. It is true that Crimes Act, s 19AH provides a process whereby, on application, a court which has failed to make, or properly make, a recognizance release order can, in effect, correct that mistake upon application by the persons nominated in the section. However, the section is not exhaustive, and an error in compliance with the Act can still constitute a basis for review …4

  1. All material from and including the first section of an Act to the end of the Act is part of the Act: Acts Interpretation Act 1901 (Cth) s 13(1).[]
  2. R v O’Brien (1991) 57 A Crim R 80 involved both state and federal offending.[]
  3. The commencement of the federal head sentence at the expiration of the territory head sentence was also in error as it was contrary to the requirement in s 19(3)(d) that the first federal sentence commence immediately after the end of a state or territory non-parole period. The Court addressed this error by applying s 61 of the Crimes (Sentencing) Act 2005 (ACT): see 4. Effects of incorrect application of section 19.[]
  4. See further Adams v The State of Western Australia [2014] WASCA 191, [171].[]
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